William John Joseph Hoge,

Plaintiff,

IN THE

CIRCUIT COURT FOR CARROLL COUNTY

MARYLAND

v.

Case No. 06-C-16-070789

Brett Kimberlin, et al.,

Defendants.

PLAINTIFFS OPPOSITION TO THE KIMBERLIN DEFENDANTS MOTION TO STAY

DISCOVERY AND MOTION TO STRIKE SAME
COMES NOW William John Joseph Hoge and opposes the Kimberlin
Defendants Motion to Stay Discovery (Docket Item 84/0) and moves the Court to
strike said Motion. In opposition to the Defendants Motion and in support of his
own Motion, Mr. Hoge states as follows:
INTRODUCTION
The instant motion is not the first filed by Brett Kimberlin seeking to avoid
having to answer discovery in the instant lawsuit. His first filing was a Motion to
Quash Subpoenas and an Order to Stay Discovery. Docket Item 44/0. During the
long sequence of litigation brought by Brett Kimberlin against Mr. Hoge and Mr.
Hoges codefendants, Brett Kimberlin has consistently taken the position that
adverse parties should not be entitled to discovery from him, but they must give
him whatever he wishes. This Court should not allow such misbehavior in this
case. This Court should enforce its Scheduling Order (Docket Item 91/0) and should
not allow the Kimberlins to avoid meeting their obligations to properly answer
requests for discovery.

I. BRETT KIMBERLIN HAS A HISTORY OF MISBEHAVIOR RELATED TO DISCOVERY

a. Brett Kimberlin Has a Record of Failing to Answer Discovery
Brett Kimberlin has filed four lawsuits and one peace order petition against
Mr. Hoge since August, 2013. All five actions failedthree of the lawsuits were
dismissed for failure to state a claim, and the peace order petition was denied
because it had no statutory basis. During the one case that went to trial, Kimberlin
v. Walker, et al., Case No. 380966V, (Md. Cir.Ct. Mont. Co. 2014), Brett Kimberlin
refused to provide discovery to Mr. Hoge and his codefendants until he was told that
his failure to answer would affect in his ability to offer evidence at trail. Even then,
he failed to properly answer and was sanctioned. On 1 August, 2014, Kimberlin
was ordered to pay Mr. Hoge and his codefendants six-hundred dollars for expenses
incurred in filing for sanctions related to discovery. Kimberlin v. Walker, et al.,
Docket Item 215, Aug. 1, 2014. Payment was ordered within seven days. Over two
years have passed, and Kimberlin has not paid so much as one cent.1
b. Brett Kimberlin Has a Record of Improper Use of Discovery Material
Subject to Protective Orders
Additionally, one count against one of Mr. Hoges codefendants survived in
one of the cases dismissed with prejudice against Mr. Hoge. However, Mr. Hoge
wound up involved in discovery in that case, Kimberlin v. Frey, Case No. 13-

This is not the only time Kimberlin has failed to pay sanctions due to Mr. Hoge.
On 3 September, 2015, sanctions of one-hundred-fifty dollars were awarded.
Kimberlin v. National Bloggers Club, et al (II)., Case No. 403868V, Docket Item 85
(Md. Cir.Ct. Mont. Co. Sept., 3, 2015). No payment has been received to date.
2

CV-03059-GJH (D.Md.)2, which only completed discovery in April, 2016. Brett

Kimberlin improperly sought to use discovery subject to a protective order from the
Frey case in another now-dismissed lawsuit against Mr. Hoge, Kimberlin v. Hunton
& Williams LLP, et al., Case No. 15-CV-0723-GJH (D.Md. 2016). When Judge
Hazel declined to modify the protective order to allow use of the protected discovery
in other cases, Kimberlin filed a petition for a writ of mandamus with the Fourth
Circuit Court of Appeals seeking an order directing the District Court to vacate the
protective order. In Re Brett Kimberlin, Case No. 16-1670 (4th Cir. 2016). His
petition is still pending.
However, Kimberlin did not wait for the Fourth Circuit to rule before filing
discovery obtained in the Frey case as exhibits in the instant lawsuit. See Docket
Item 44/2, unlabeled exhibits.
Nor were these the only occasions Kimberlin has used discovery subject to a
protective order in one case in an unrelated matter. The attached Affidavit from
Aaron J. Walker, Esq., describes Kimberlins use of sealed discovery from Walker v.
Kimberlin, et al., Case No. CL12-631 (Va. Cir.Ct. Pr. Wm. Co, 2012). Mr. Walkers
Affidavit also details the Kimberlins abuse of discovery in Walker v. Kimberlin, et
al., Case No. 39885V (Md. Cir.Ct. Mont. Co. 2016).
c. Brett Kimberlin Has a Record of Filing Frivolous Motions for Sanctions
During the Frey discovery, Kimberlin sought to subpoena information from
Mr. Hoge. However, he failed to properly serve the subpoena. While Mr. Hoge
2

The Frey case was originally styled Kimberlin v. National Bloggers Club, et al (I).
3

would have been within his rights to ignore that subpoena, he voluntarily answered
it because 1) he wished to avoid a round of motions, oppositions, and replies over
the issue and 2) none of the information he possessed was likely to be of any use to
Kimberlin. The result of that voluntary cooperation was Kimberlins filing of a
frivolous motion for sanctions against Mr. Hoge and an extended series of motions,
oppositions, and replies involving Mr. Hoge in a case from which he had been
dismissed with prejudice in March, 2015. Kimberlins motion for sanctions is still
pending against Mr. Hoge and, based on Judge Hazels statements concerning the
disposition of sanctions motions, it is not likely to be resolved until after the Frey
case is settled.
The Kimberlins have filed a Motion for Sanctions against Mr. Hoge in this
case (Docket Item 83/0). As Mr. Hoge has shown in his Opposition to that motion
(filed simultaneously with this Opposition), their motion is completely devoid of any
facts or law supporting it.
II. THE COURT SHOULD NOT DELAY DISCOVERY
Given the Brett Kimberlins history of flouting the Rules related to discovery,
this Court should be cautious in allowing the Kimberlins any opportunity to avoid
their obligations to answer requests for discovery. In their Motion to Stay
Discovery they ask the Court to place an already ongoing process on hold because
the said they intended to file a motion for summary judgment. They subsequently
filed such a motion. Docket Item 85/0. Now, for a such a motion to be successful,

the Kimberlins would have to show that there are no material facts in dispute. The
Kimberlins have failed to make such a showing in any of their filings.
The Kimberlins misrepresent the record of the Walker v. Kimberlin, et al.,
Case No. 398855V (Md. CirCt. Mont. Co. 2016) lawsuit in their Motion to Stay
Discovery. The jurys findings in the Walker case were not as described in the
Kimberlins Motion. In fact, the jury found that the Kimberlins had both lied and
that they had both omitted exculpatory details from their Applications for
Statement of Charges filed against Mr. Walker. However, the Walker jury did not
strike enough material from the Applications for the Court to find a lack of probable
cause in them. The Walker jury made no findings with respect to the Applications
for Statement of Charges filed against Mr. Hoge, and during Brett Kimberlins
examination of Mr. Hoge, Judge Mason made the point that the two cases were
separate.3 Mr. Walkers motion for a new trial is pending.
Thus, it is clear that there are material facts in dispute. Therefore, each side
should be entitled to seek discovery from the other. The Court should deny the
Kimberlins Motion to Stay Discovery.
The Kimberlins have unilaterally announced that they will not be complying
with any discovery directed toward them at this time. Motion to Stay Discovery,
7. This is a clear violation of Rule 2-432 which states that failure to respond to
interrogatories may not be excused unless a protective order has been obtained
under Rule 2-403. The Kimberlins have not obtained a protective order. They
3

As did this Court during the 27 September, 2016, motions hearing.

5

havent even sought one. They have no lawful basis for their failure to comply with
discovery. Therefore, Mr. Hoge is simultaneously filing with this Opposition a
Motion to Compel Discovery from Brett Kimberlin regarding interrogatories served
on 17 October, 2016, and for which responses are past due.
III. THE KIMBERLINS MOTION SHOULD BE STRICKEN
During the motions hearing on 27 September, 2016, the Court noted that pro
se litigants are expected to follow the Maryland Rules. On 29 September, the Court
issued an Order (Docket Item 77/0) requiring the Kimberlins to bring the signature
blocks on all of their pleadings and other court papers into compliance with Md.
Rule 1-311. Neither Brett Kimberlins nor Tetyana Kimberlins signature blocks
contain an address, and telephone number, or fax number (if any), or email address
(if any). While Brett Kimberlin did include the proper contact information for
himself with the attached Certificate of Service, there is no contact information for
Tetyana Kimberlin. However, the inclusion of Brett Kimberlins information with
the Certificate of Service is still insufficient for him. Rule 1-311 requires that the
information be provided with the signature on a pleading or a court paper, and a
Certificate of Service is neither.
On its face, this rule distinguishes between a pleading or other
paper and a certificate of service. Applying the Duckett analysis
leads us to conclude that the certificate of service is not a paper
under the Rules. See Druckett, 428, Md. at 479-80, 52 A.3d 84.

Smith-Myers Corp. v. Sherill, 209 Md.App. 494, 60 A.3d 90, 101-2 (2013). In that
case, the offending partys failure to include the full address and contact
information as required by the Rule led to judgment against that party.
The Court should enforce Rule 1-311 and its own Order and strike the
Kimberlins Motion for to Stay Discovery, and the case should proceed as if it were
never filed.
CONCLUSION
WHEREFORE, Mr. Hoge asks the Court to STRIKE the Kimberlins Motion to
Stay Discovery Item 84/0, or, alternatively, to DENY said Motion. Mr. Hoge also
asks for such other relief as the Court may find just and proper.

Date: 21 November, 2016

Respectfully submitted,

William John Joseph Hoge, pro se

20 Ridge Road
Westminster, Maryland 21157
(410) 596-2854
himself@wjjhoge.com

CERTIFICATE OF SERVICE
I certify that on the 21st day of November, 2016, I served copies of the
foregoing on the following persons:
William M. Schmalfeldt by First Class U. S. Mail to 3209 S. Lake Drive, Apt. 108,
St. Francis, Wisconsin 53235.
Brett Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,
Maryland 20817.
Tetyana Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,
Maryland 20817.

William John Joseph Hoge

AFFIDAVIT
I, William John Joseph Hoge, solemnly affirm under the penalties of perjury
that the contents of the foregoing paper are true to the best of my knowledge,
information, and belief.
Date: 21 November, 2016
William John Joseph Hoge

Exhibit A

MARYLAND:
IN THE CIRCUIT COURT OF CAROLL COUNTY

WILLIAM HOGE, III,

Plaintiff
v.

Case No. 06-C-16-070789

BRETT KIMBERLIN, ET AL.,

Defendants

AFFIDAVIT OF AARON J. WALKER, ESQ.

1.

My name is Aaron J. Walker, Esq., and I make these statements based upon my

own personal knowledge, except where otherwise noted. I am an attorney in good standing in
Virginia and Washington, D.C., but not in Maryland. I am over 18 years of age, and if called to
do so, I am competent to testify that the contents of this affidavit are accurate and true.
2.

In 2012, I sued Mr. Kimberlin and two others for a number of causes of action in

Walker v. Kimberlin, et al., Case No. CL12-631 (Va. Cir.Ct. Pr. Wm. Co, 2012). Mr. Kimberlin
demanded that the court give him a protective order and, upon his motion, the court directed that
both parties were prohibited from disclosing to third parties any documents provided in
discovery.
3.

At the appointed time, I provided hundreds of pages of documents, often

including information that was arguably privileged or otherwise exempt from discovery. Mr.
Kimberlin continued to obstruct that discovery process. Further, shortly after information was
provided to Mr. Kimberlin, it began to appear on the Internet under byline of his admitted
associate and friend Bill Schmalfeldt. He has since repeatedly used that information in other

cases (despite the fact that the information never proved what he claimed it did), in flagrant
violation of that courts ruling.
4.

Both Kimberlins, jointly and separately, engaged in conduct designed to obstruct

my right to discovery in Walker v. Kimberlin, et al., Case No 398855V (Md. Cir.Ct. Mont. Co.
2016). For instance, I propounded the following interrogatories to them:
2.
Identify each person, other than a person intended to be called as
an expert witness at trial, having discoverable information that tends to support a
position that you have taken or intend to take in this action, and state the subject
matter of the information possessed by that person.
3.
Identify each person whom you expect to call as an expert witness
at trial, state the subject matter on which the expert is expected to testify, state the
substance of the findings and opinions to which the expert is expected to testify
and a summary of the grounds for each opinion, and, with respect to an expert
whose findings and opinions were acquired in anticipation of litigation or for trial,
summarize the qualifications of the expert, state the terms of the expert's
compensation, and attach to your answers any available list of publications
written by the expert and any written report made by the expert concerning the
expert's findings and opinions.
4.
If you intend to rely upon any documents, electronically stored
information, or tangible things to support a position that you have taken or intend
to take in the action, provide a brief description, by category and location, of all
such documents, electronically stored information, and tangible things, and
identify all persons having possession, custody, or control of them.
The answers to all three were the same: none, none, and none. Despite the fact that they stated
that they had no witnesses, no documents, no electronically stored information, and no tangible
things to support any position they took, they put on a defense at trial, Mr. Kimberlin testifying
on his own behalf and presenting documents that the Kimberlins claimed supported their
position.
5.

This was not the only example of obstructionism. In Montgomery County Circuit

Court the parties are supposed to use a form pre-trial statement at one point in the proceedings.
This is supposed to be a joint statement. I attempted to work with the Kimberlins on this by
2

sending them correspondence, and my attempts to do so was ignored. Instead, they unilaterally
filed a separate pre trial statement which was woefully incomplete. Question 8 required the
Defendants to list the Name, address and telephone number of each person who may be called
to testify. The Kimberlins provided some names without including any contact information.
When this was brought to the courts attention, the court ordered them to provide phone numbers
and the subject matter of the expected testimony. In response they only provided some phone
numbers and never stated the subject matter of any proposed testimonyto my prejudice.
6.

In the same form, Question 10 read as follows:

Attach a listing of the exhibits to be offered in evidence by each party at the trial,
other than those expected to be used solely for impeachment, indicating which
exhibits the parties agree may be offered in evidence without the usual
authentication. Complete list of exhibits identifying by exhibit number each
document that may be offered at trial. (Stickers to be attached to each exhibit are
available in Clerks office.) Any objections to another partys exhibits should be
stated.
The Kimberlins listed no specific exhibits, instead generally describing what they intended to
offer. Question 14 asked about audio and video recordings that might be offered into evidence.
The Kimberlins simply stated that they might introduce audio of two peace order hearings,
without specifying which hearings. Bear in mind, Mr. Kimberlin alone has been witness to over
a dozen peace order hearings (against myself, against Mr. Hoge, against Mrs. Kimberlins
paramour Jay Elliott, and other parties), so there was no way to deduce to which two hearings the
Kimberlins might have been referring.
7.

Additionally, the Kimberlins refused to provide relevant discovery about the

mental status of Tetyana Kimberlin or her daughter Kelsie Kimberlin. This was despite the fact
that Applications for Statement of Charges filed by both Mr. and Mrs. Kimberlin made
allegations relatinb to the mental status of both of these persons. With respect to Tetyana

Kimberlin, Mr. Kimberlin claimed that I harassed him by allegedly taking advantage of an
unnamed mental illness on Tetyana Kimberlins part. Likewise, the Kimberlins jointly claimed
that I inflicted severe emotional distress on Kelsie Kimberlin by truthfully reporting about her
fathers sexual misconduct (Tetyana Kimberlin testified that her husband first seduced her when
she was fourteen years old). Naturally, being accused of criminal conduct related to their mental
status, I sought discovery about Kelsie and Tetyana Kimberlins mental state. The Kimberlins
refused, citing confidentialityan objection that was ultimately found to be wanting by the
court.
8.
daughter.

Likewise, the Kimberlins accused me of causing third parties to bully their

Of course, I sought discovery about these alleged incidents of bullying.

The

Kimberlins refused again, claiming that this was a matter of confidentiality. When Judge Mason
reasonably overruled that objection and ordered that they specify who allegedly bullied their
daughter, when it happened, where it happened, and what was done, they still refused to provide
this information. Judge Mason barred them from offering testimony about the subject.
9.

Likewise, in another affidavit provided in this case I mentioned how on October

5, 2016, I provided a deposition to Mr. Kimberlin. Immediately after that deposition, I was
supposed to be allowed to depose Tetyana Kimberlin in the Montgomery Circuit Courts Law
Library. Even though my original notice of deposition stated that it would be recorded by video,
she objected to video recording. It became necessary to contact chambers, and Judge Mason
ruled as follows: if there was a stenographer, I would only be allowed to use a stenographer; but
if I only had a videographer, I could record it by video, but I could only use audio at the hearing,
and I would not be allowed to make any other use of that video without a court order.